Casting a Wide Net
Trump’s early immigration moves not focused on criminal activity
Donald Trump began his second term with a familiar tone, claiming that migrants bring crime to communities in the United States. Despite his rhetoric, most of the immigration changes announced in day one executive orders have nothing to do with criminal activity. They instead put anyone who has violated immigration law in crosshairs. Of those changes that do turn on criminal history, none are focused on serious offenders.
Enforcement priorities
The president’s immigration policy agenda lacks a clear emphasis on any group of migrants. One of Trump’s executive orders, Initial Rescissions of Harmful Executive Orders and Actions, rolls back the Biden administration’s emphasis on people “who are a threat to our national security, public safety, and border security.” Another one, Protecting the American People Against Invasion, brings back the broad immigration enforcement priorities of Trump’s first term. During Trump’s first three years in office, the number of people removed who had a criminal record for any crime never outnumbered the number who did not. Only the pandemic-impacted 2020 upset that trend, but just barely. That year, DHS removed 118,222 people with no criminal record compared to the 119,142 people who did have a criminal record.
Also echoing his first term, Trump’s executive orders promise more prosecutions of illegal entry and illegal reentry, two federal criminal offenses related to migration. Illegal entry punishes entering the United States without the federal government’s permission and illegal reentry punishes doing that after having previously been removed from the United States. On his first day, Trump ordered the Justice Department and ICE’s Homeland Security Investigations unit to prioritize illegal entry and reentry prosecutions alongside attempts to forcibly remove people who are living in the United States without the federal government’s permission.
Trump’s directive prods ICE’s main team of law enforcement investigators to team up with federal prosecutors to criminalize more migrants. Forcing HSI to spend more resources on low-level, non-violent offenses is likely to upset agents there who prefer to think of themselves as focused on serious transnational crime. Less than a year ago, HSI rebranded itself to get some distance from its immigration-focused colleagues in other parts of ICE. The effect of Trump’s order is to steer resources away from HSI’s current emphasis on cross-border child exploitation, weapons trafficking, and financial crimes and towards ordinary immigration law violations.
On his first day back in the Oval Office, Trump also ordered Justice Department prosecutors to prioritize human smuggling, human trafficking, and other “offenses that relate to the borders of the United States.” This is likely to capture U.S. citizens more than migrants. According to state officials in Texas, almost three-quarters of people charged criminally with smuggling under the state’s immigration policing initiative, Operation Lone Star, were U.S. citizens.
Expedited removal
One of Trump’s most concrete early decisions instructs DHS to expand expedited removal, a fast-track deportation option created by President Clinton. DHS briefly expanded expedited removal during Trump’s first term, but it was delayed by litigation and eventually rolled back by Biden. Using the expedited removal procedure, immigration officials can forcibly remove migrants without allowing them to see an immigration judge. But expedited removal doesn’t turn on criminal history. Instead, it applies to people who immigration officers believe engaged in fraud or lack a required visa or passport.
Trump’s expedited removal expansion won’t go into effect immediately. As I wrote previously, DHS will first need to publish a formal notice explaining its plans.
Imprisonment
Likewise, Trump ordered DHS to boost the number of immigration prisons available. Immigration officials must detain migrants “to the fullest extent permitted by law,” his Securing Our Borders executive order instructs. Immigration law authorizes DHS to detain migrants for many reasons having nothing to do with criminal activity and the president did not tell DHS to use its detention powers specifically for people with criminal histories. Taken at its words, Trump’s directives are likely to lead ICE to detain anyone who immigration officials suspect of having violated immigration law. Paired with the new administration’s emphasis on policing the U.S.-Mexican border, that’s likely to lead to an increase in the number of asylum seekers who are detained.
“Criminal aliens are easy to tar,” I wrote in Welcome the Wretched, my most recent book. Trump has made migrant criminality his calling card, but it’s largely divorced from reality. Since migrants make communities safer, it’s not feasible to build a mass deportation campaign around migrants with criminal records. Trump’s team is sure to continue to claim that they are emphasizing criminal activity, but the new administration’s early immigration policy shifts don’t even try. Given this start, no one should be surprised when most of the people detained and deported during Trump’s second term lack a criminal history just like during his first term.
Most people have no idea that the vast majority of the undocumented have only misdemeanor offense of illegal entry, or for 50% of the undocumented, just the civil offense of overstaying a visitor or student visa.
Without prioritizing serious criminal violations, Trump insured that ICE will mostly end up arresting the easy, nonviolent offenders. Ask yourself if you were an ICE officer, wouldn’t you prefer to be able to go home to your family without being shot at by a cartel member?